{ "id": 8152749, "name": "Jason Joeseth POWELL v. Davelynn Felkel LANE and Wendell Ray Lane", "name_abbreviation": "Powell v. Lane", "decision_date": "2008-12-11", "docket_number": "08-282", "first_page": "178", "last_page": "200", "citations": [ { "type": "official", "cite": "375 Ark. 178" }, { "type": "parallel", "cite": "289 S.W.3d 440" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "23 P.2d 532", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1933, "pin_cites": [ { "page": "534" } ], "opinion_index": 0 }, { "cite": "116 P.2d 605", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1941, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "250 F.3d 1240", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11101418, 11104243 ], "year": 2001, "pin_cites": [ { "page": "1246", "parenthetical": "quoting Horton v. Horton, 116 P.2d 605, 608 (Cal. 1941)" } ], "opinion_index": 0, "case_paths": [ "/br/262/1014-01", "/f3d/250/1240-01" ] }, { "cite": "329 F.3d 1119", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9130932, 9126302 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/f3d/329/1119-01", "/br/293/1119-01" ] }, { "cite": "361 Ark. 357", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5683034 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/361/0357-01" ] }, { "cite": "364 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3031998 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/364/0332-01" ] }, { "cite": "268 Ark. 917", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715520 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0917-01" ] }, { "cite": "19 Ark. App. 198", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648372 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/19/0198-01" ] }, { "cite": "311 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897008 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "citing Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980)" }, { "parenthetical": "citing Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980)" } ], "opinion_index": 0, "case_paths": [ "/ark/311/0416-01" ] }, { "cite": "368 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3800015 ], "weight": 3, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0369-01" ] }, { "cite": "249 Ark. 824", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723947 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/249/0824-01" ] }, { "cite": "221 Ark. 759", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656608 ], "weight": 3, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/221/0759-01" ] }, { "cite": "280 B.R. 193", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 9410541 ], "year": 2002, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/br/280/0193-01" ] }, { "cite": "305 B.R. 111", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 9277538 ], "year": 2003, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/br/305/0111-01" ] }, { "cite": "62 F.3d 1319", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6470405, 7417854 ], "year": 1995, "pin_cites": [ { "page": "1323" } ], "opinion_index": 0, "case_paths": [ "/br/185/1319-01", "/f3d/62/1319-01" ] }, { "cite": "375 F. Supp. 499", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3423052 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f-supp/375/0499-01" ] }, { "cite": "168 S.W.2d 790", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1943, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "65 F.3d 51", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7409928, 6472163 ], "year": 1995, "pin_cites": [ { "page": "54", "parenthetical": "quoting Lawhorn v. Wellford, 168 S.W.2d 790, 792 (Tenn. 1943)" } ], "opinion_index": 0, "case_paths": [ "/f3d/65/0051-01", "/br/186/0051-01" ] }, { "cite": "989 P.2d 309", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 927722 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "also cited by the dissent" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/mont/296/0267-01" ] }, { "cite": "132 N.W. 970", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 3, "year": 1911, "pin_cites": [ { "page": "972" } ], "opinion_index": 0 }, { "cite": "94 N.W.2d 105", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4444290 ], "weight": 3, "year": 1959, "pin_cites": [ { "page": "108", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/iowa/250/0407-01" ] }, { "cite": "761 P.2d 432", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1597117 ], "year": 1988, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0554-01" ] }, { "cite": "46 Cal. Rptr. 3d 7", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2006, "pin_cites": [ { "page": "34", "parenthetical": "\"California, on the other hand, accords collateral estoppel effect to default judgments, at least where the judgment contains an express finding on the allegations.\"" } ], "opinion_index": 0 }, { "cite": "270 Ark. 652", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709262 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0652-01" ] }, { "cite": "371 Ark. 229", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490492 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "237" }, { "page": "492" }, { "page": "234-35" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ark/371/0229-01" ] }, { "cite": "352 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159684 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0117-01" ] }, { "cite": "347 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683297 ], "weight": 4, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0006-01" ] }, { "cite": "338 Ark. 636", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243518 ], "weight": 5, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0636-01" ] }, { "cite": "368 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3799752 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0481-01" ] }, { "cite": "101 Ark. App. 295", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140934 ], "weight": 6, "year": 2008, "pin_cites": [ { "page": "296" }, { "page": "667" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/ark-app/101/0295-01" ] }, { "cite": "279 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1747004 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "152" }, { "page": "227" } ], "opinion_index": 1, "case_paths": [ "/ark/279/0149-01" ] }, { "cite": "43 Ark. App. 142", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138958 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/43/0142-01" ] }, { "cite": "346 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111367 ], "weight": 2, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark/346/0432-01" ] }, { "cite": "199 Ark 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456644 ], "weight": 2, "year": 1939, "opinion_index": 1, "case_paths": [ "/ark/199/0152-01" ] }, { "cite": "219 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609079 ], "weight": 2, "year": 1951, "pin_cites": [ { "parenthetical": "The \"presumption is a rebuttable one, and may be overcome with sufficient proof. . . and must give way to reality when facts opposing the presumption are presented.\" (quoting Gray v. Gray, 199 Ark 152, 133 S.W.2d 874 (1939)" }, { "parenthetical": "The \"presumption is a rebuttable one, and may be overcome with sufficient proof. . . and must give way to reality when facts opposing the presumption are presented.\" (quoting Gray v. Gray, 199 Ark 152, 133 S.W.2d 874 (1939)" } ], "opinion_index": 1, "case_paths": [ "/ark/219/0178-01" ] }, { "cite": "47 Ark. L. Rev. 701", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1994, "opinion_index": 1 }, { "cite": "88 B.R. 957", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 11937379 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "962" }, { "page": "962", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/br/88/0957-01" ] }, { "cite": "439 U.S. 322", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330171 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/us/439/0322-01" ] }, { "cite": "35 San Diego L. Rev. 509", "category": "journals:journal", "reporter": "San Diego L. Rev.", "year": 1998, "pin_cites": [ { "page": "556", "parenthetical": "suggesting that if the California Supreme Court really adheres to the four-factor test of the second Restatement of Judgments, it \"should disapprove of those decisions that have extended collateral estoppel to default judgments\"" } ], "opinion_index": 1 }, { "cite": "591 N.Y.S.2d 313", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 907562 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/misc2d/155/0975-01" ] }, { "cite": "133 F.3d 210", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 22552, 11888170 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/f3d/133/0210-01", "/br/215/0210-01" ] }, { "cite": "100 F.2d 1195", "category": "reporters:federal", "reporter": "F.2d", "year": 1996, "pin_cites": [ { "parenthetical": "default judgments issued as discovery sanctions" } ], "opinion_index": 1 }, { "cite": "717 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "\"We can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply.\"" } ], "opinion_index": 1 }, { "cite": "800 N.Y.S.2d 651", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 1059642 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/ad3d/22/0071-01" ] }, { "cite": "70 Colum. L. Rev. 522", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1970, "opinion_index": 1 }, { "cite": "407 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8577528 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/w-va/185/0409-01" ] }, { "cite": "448 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "503 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 520094 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/sc/331/0328-01" ] }, { "cite": "828 A.2d 430", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9105725 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/a2d/828/0430-01" ] }, { "cite": "336 A.2d 363", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1975, "opinion_index": 1 }, { "cite": "764 N.Y.S.2d 708", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 582312 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ad2d/309/0081-01" ] }, { "cite": "624 A.2d 85", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 404752 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nj-super/264/0172-01" ] }, { "cite": "856 A.2d 5", "category": "reporters:state_regional", "reporter": "A.2d", "year": 2004, "opinion_index": 1 }, { "cite": "8 P.3d 795", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 281771 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/mont/301/0304-01" ] }, { "cite": "908 P.2d 49", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1486477 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/ariz/184/0235-01" ] }, { "cite": "124 F.3d 1291", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 969466, 11910107 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/fed-cl/38/1291-01", "/f3d/124/1291-01" ] }, { "cite": "579 F.2d 289", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 874588 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/f2d/579/0289-01" ] }, { "cite": "77 L.Ed.2d 1317", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 1 }, { "cite": "103 S.Ct. 2430", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 1 }, { "cite": "461 U.S. 958", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334464, 11334306, 11334660, 11334598, 11334206, 11334953, 11334799, 11334735, 11334866, 11334517, 11334007, 11334075, 11334142 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/us/461/0958-06", "/us/461/0958-05", "/us/461/0958-09", "/us/461/0958-08", "/us/461/0958-04", "/us/461/0958-13", "/us/461/0958-11", "/us/461/0958-10", "/us/461/0958-12", "/us/461/0958-07", "/us/461/0958-01", "/us/461/0958-02", "/us/461/0958-03" ] }, { "cite": "694 F.2d 466", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1487385 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/f2d/694/0466-01" ] }, { "cite": "328 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50403 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/328/0416-01" ] }, { "cite": "284 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878587 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/284/0568-01" ] }, { "cite": "320 Ark. 699", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451306 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "705", "parenthetical": "citing Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983)" }, { "page": "473", "parenthetical": "citing Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983)" } ], "opinion_index": 1, "case_paths": [ "/ark/320/0699-01" ] }, { "cite": "329 F.3d 1119", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9130932, 9126302 ], "year": 2003, "pin_cites": [ { "page": "1124" } ], "opinion_index": 1, "case_paths": [ "/f3d/329/1119-01", "/br/293/1119-01" ] }, { "cite": "249 Ark. 824", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723947 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/ark/249/0824-01" ] }, { "cite": "221 Ark. 759", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656608 ], "weight": 4, "year": 1953, "pin_cites": [ { "page": "762" }, { "page": "343", "parenthetical": "ceremonial marriage to a person who has previously been married and who never obtained a divorce is void" } ], "opinion_index": 1, "case_paths": [ "/ark/221/0759-01" ] }, { "cite": "62 F.3d 1319", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6470405, 7417854 ], "year": 1995, "pin_cites": [ { "parenthetical": "fraud" } ], "opinion_index": 1, "case_paths": [ "/br/185/1319-01", "/f3d/62/1319-01" ] }, { "cite": "168 S.W.2d 790", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1943, "opinion_index": 1 }, { "cite": "65 F.3d 51", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7409928, 6472163 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/f3d/65/0051-01", "/br/186/0051-01" ] }, { "cite": "989 P.2d 309", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 927722 ], "year": 1999, "pin_cites": [ { "parenthetical": "acknowledging the \"general rule\" that a default judgement carries no collateral estoppel effect" } ], "opinion_index": 1, "case_paths": [ "/mont/296/0267-01" ] }, { "cite": "132 N.W. 970", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1911, "opinion_index": 1 }, { "cite": "94 N.W.2d 105", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4444290 ], "weight": 3, "year": 1959, "opinion_index": 1, "case_paths": [ "/iowa/250/0407-01" ] }, { "cite": "761 P.2d 432", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1597117 ], "year": 1988, "pin_cites": [ { "page": "435-36" } ], "opinion_index": 1, "case_paths": [ "/nm/107/0554-01" ] }, { "cite": "46 Cal. Rptr. 3d 7", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "weight": 2, "year": 2006, "opinion_index": 1 }, { "cite": "371 Ark. 229", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490492 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "237", "parenthetical": "guilty plea in a criminal case is not equivalent to a criminal conviction that has been \"actually litigated\"" }, { "page": "492", "parenthetical": "guilty plea in a criminal case is not equivalent to a criminal conviction that has been \"actually litigated\"" } ], "opinion_index": 1, "case_paths": [ "/ark/371/0229-01" ] }, { "cite": "347 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683297 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "16" }, { "page": "445" }, { "page": "16" }, { "page": "445" } ], "opinion_index": 1, "case_paths": [ "/ark/347/0006-01" ] } ], "analysis": { "cardinality": 1562, "char_count": 47681, "ocr_confidence": 0.759, "pagerank": { "raw": 3.9310764701188053e-07, "percentile": 0.9030283232729013 }, "sha256": "d34c9eb593316a684a39b7c4207b9936cfba3fcb0698f7d19e1d55182e19839a", "simhash": "1:577b462d6cc3ea07", "word_count": 7945 }, "last_updated": "2023-07-14T22:36:16.941269+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown and Wills, JJ., dissent.", "Brown, J., joins this dissent." ], "parties": [ "Jason Joeseth POWELL v. Davelynn Felkel LANE and Wendell Ray Lane" ], "opinions": [ { "text": "Jim Hannah, Chief Justice.\nThis is an appeal of an adoption decree granted to the appellees, Wendell Ray Lane and Davelynn Felkel Lane, permitting Wendell to adopt Davelynn\u2019s minor son, D.P., whom she conceived with appellant Jason Powell. The court of appeals reversed and remanded to the circuit court in a 5-4 decision. See Powell v. Lane, 101 Ark. App. 295, 275 S.W.3d 666 (2008). The Lanes petitioned this court for review, which we granted pursuant to Arkansas Supreme Court Rule 2-4 (2008). Because this appeal is before us on a petition for review, our jurisdiction of the case is pursuant to Arkansas Supreme Court Rule l-2(e) (2008). Upon the grant of a petition for review, we consider the case as though it had been originally filed in this court. See, e.g., Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). We affirm the circuit court\u2019s order granting the petition for adoption, and we reverse the court of appeals.\nIt is undisputed that on December 31, 1996, Davelynn and Jason went to the First Baptist Church in Pencil Bluff where they were married by Reverend Bruce Tidwell. The ceremony was traditional in that Jason stood at the head of the church and Davelynn walked down the aisle in a creme-colored dress. When Davelynn reached the front of the church, she and Jason exchanged marriage vows while family and friends witnessed the ceremony. Davelynn\u2019s mother was among those present. Dave-lynn was pregnant with Jason\u2019s child at the time of the ceremony and later gave birth to a son, D.P., on July 9, 1997. She and Jason lived together as husband and wife, from the date of the ceremony until their separation in the spring of2004, almost eight years later.\nIt is also undisputed that Davelynn and Powell obtained a marriage license before the ceremony. The marriage license was not signed by Reverend Tidwell and was never returned to the county clerk for filing. Davelynn and Jason have never obtained a divorce.\nOn June 9, 2004, Davelynn petitioned the Montgomery County Circuit Court to establish paternity of her son, D.P. Davelynn alleged that Jason was the natural father ofD.P., a minor child who was born out of wedlock to her on July 9, 1997. In addition, she averred that she and Jason were not married to each other or any other persons at the time of the conception and birth ofD.P. The petition and summons were served on Jason, but he failed to answer and a default judgment was entered on July 23, 2004. In the order, the circuit court found that Jason was the natural father of D.P., and that Davelynn and Jason were not married to each other or any other persons at the time of the conception and birth ofD.P. The order set a visitation schedule, required Jason to pay child support in the amount of seventy-five dollars per week, and required Jason to pay one-half of D.P.\u2019s medical expenses. Jason did not appeal the default order. Subsequently, Jason moved to set aside the default judgment, but that motion was denied.\nDavelynn and Wendell were married on September 4, 2004. On March 28, 2006, they petitioned the Polk County Circuit Court for a decree allowing Wendell to adopt D.P. without the consent of Jason. Davelynn consented to the adoption and alleged that Jason had failed significantly without justifiable cause to communicate with or support D.P. for at least one year. Jason answered, denying the allegations and refusing to consent to the adoption.\nOn May 12, 2006, Jason filed a petition for divorce against Davelynn in Montgomery County Circuit Court in the same cause of action as the paternity action. Davelynn moved to dismiss the petition, asserting that the issue of the validity of the marriage had already been resolved. The cases were consolidated in the Polk County Circuit Court and heard on July 5, 2006.\nAt the hearing, Davelynn testified that she was pregnant at the time of the wedding. She stated that she and Jason were not married; rather, she testified that they \u201cwent through a ceremony.\u201d Davelynn added: \u201cYou do lots of things of play acting that\u2019s not legal and it\u2019s my understanding that that wasn\u2019t legal.\u201d She claimed that, at the time, Jason did not want to be married because he felt \u201ctrapped,\u201d but that they had already gotten the marriage license, her grandfather was dying, and she was an overwhelmed pregnant teenager who did not know what to do. Davelynn testified that she and Jason never intended to file the license and that the preacher never saw the marriage license. In addition, Davelynn stated that she \u201cmade a very bad decision,\u201d and that she and Jason were never married.\nDavelynn also provided testimony regarding her marriage to Wendell. She stated that they were married on September 4, 2004, in Branson, Missouri. She further stated that Jason had not paid child support since December 2004 and that he had not paid any portion of D.P.\u2019s medical bills.\nJason testified that D.P. had been diagnosed with aseptic optic dysplasia with hypopanpituitarism. Jason stated that he was his son\u2019s \u201cprimary shot-giver\u201d and \u201cprimary medication-giver\u201d during the first eight years of his son\u2019s life. Jason admitted that he stopped paying support to Davelynn through the Child Support Clearinghouse, but he denied that he quit paying support, stating that, instead, he deposited payments into a fund that he was maintaining for D.P. Jason said that he stopped paying money to the clearinghouse because he knew that doing so would cause the Child Support Enforcement Office to bring him into court. Jason stated that he believed that once he was brought into court, he could resolve all of the other issues with Davelynn.\nJason\u2019s sister-in-law, Melissa Powell, testified that she witnessed the marriage ceremony in which Jason and Davelynn were married. She stated: \u201cWe had a wedding, they kissed, they went down the aisle, they said, I do. That\u2019s what I seen.\u201d\nWendell testified that he and Davelynn were married on September 4, 2004, and have one child together. He further testified that D.P. had resided with him and Davelynn since they were married. Wendell stated that he wanted to adopt D.P. because he loved him and because he felt like D.P. was his son. Wendell also testified that he and Davelynn had received no financial support for D.P. from Jason since their marriage.\nThe circuit court dismissed Jason\u2019s divorce petition. In doing so, the circuit court ruled that Davelynn and Jason were never married because they failed to have the preacher who performed their marriage ceremony sign the marriage license and because they also failed to file the license with the county clerk.\nThe circuit court then granted the adoption petition of Davelynn and Wendell. In its order granting the petition, the circuit court found that Jason and Davelynn were not married at the time D.P. was conceived or at any time thereafter. The circuit court further concluded that, while there was much testimony and conflict over whether Jason had attempted to communicate with D.P., there was no dispute that, in excess of one year, Jason had failed significantly, without justifiable cause, to pay child support for D.P. Accordingly, the circuit court determined that Jason\u2019s consent to the adoption was not necessary. Jason filed a motion for reconsideration, which was denied by the circuit court. Jason appealed to the court of appeals, which reversed and remanded the circuit court. The court of appeals held that Davelynn and Jason were validly married and that the circuit court erred in finding otherwise. See Powell, 101 Ark. App. at 296, 275 S.W.3d at 667. Further, the court of appeals held: \u201cIn that the trial court\u2019s finding that [Jason] and Davelynn were never married was the determi-nating factor regarding the remaining issues, we reverse and remand all issues presented.\u201d Id., 275 S.W.3d at 667. Davelynn and Wendell now petition for review.\nThe Validity of the Marriage\nJason first contends that the circuit court erred in concluding that he and Davelynn were not validly married. Davelynn claims that the issue of the validity of the marriage was decided in the circuit court\u2019s July 23, 2004 default order. She points out that Jason took no appeal from that order and that he did not raise the issue of the validity of the marriage until nearly two years after the entry of the order, in a petition for divorce. Accordingly, Davelynn contends that Jason\u2019s arguments regarding the validity of the marriage are barred by res judicata. For his part, Jason asserts that Davelynn\u2019s paternity complaint did not address the validity of the marriage and, therefore, the default order could not have resolved the issue.\nRes judicata bars relitigation of a claim in a subsequent suit when five factors are present. These include: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). Furthermore, res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Id. The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id. This court has applied the doctrine of res judicata in the context of family law. Id.\nWhile Davelynn couches her argument in terms of res judicata, it appears that she is asserting that Jason\u2019s challenge to the validity of the marriage is barred by collateral estoppel, or issue preclusion. Collateral estoppel requires four elements before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). The party against whom collateral estoppel is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding. See id. Unlike res judicata, which acts to bar issues that merely could have been litigated in the first action, collateral estoppel requires actual litigation in the first instance. Id.\nThe default judgment states that Jason was properly served, and that Davelynn and Jason \u201cwere not married to each other or any other persons at the time of the conception and birth.\u201d The paternity petition asserted that Jason and Davelynn \u201cwere not married to each other or any other persons at the time of the conception and birth\u201d of D.P. Thus, Jason was on notice that the issue of the validity of this marriage was to be decided, and he had a full and fair opportunity to be heard. He chose not to be heard.\nHowever, the dissent states that collateral estoppel does not apply to default judgments. In Arkansas, a default judgment is just as binding and enforceable as a judgment on the merits. See State v. $258, 035 U.S. Currency, 352 Ark. 117, 98 S.W.3d 818 (2003). Nonetheless, the dissent asserts that collateral estoppel does not apply to default judgments because a default does not actually litigate the issues. The dissent errs in its definition of \u201cactually litigated.\u201d In the context of collateral estoppel, \u201cactually litigated\u201d means that the issue was raised in pleadings, or otherwise, that the defendant had a full and fair opportunity to be heard, and that a decision was rendered on the issue. For example, in Bradley Ventures v. Farm Bureau Mutual Insurance Co. of Arkansas, 371 Ark. 229, 237, 264 S.W.3d 485, 492 (2007), taking the guilty plea decided guilt to a charge of reckless burning, but taking the guilty plea did not decide the issue of Bradley\u2019s intent to commit arson with which he was originally charged. While this case does not concern a default judgment, it is similar in that it involved a plea that resolved the case without a full trial. To the argument of collateral estoppel, this court stated:\nThe doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that issue was essential to the judgment.\nBradley, 371 Ark. at 234-35, 264 S.W.3d at 490. A guilty plea or a default judgment may satisfy the requirement of collateral estoppel where the issue was essential to the judgment and was properly raised and decided by the action. Both a guilty plea and a default judgment may provide a full and fair opportunity to heard, as in the present case. Jason chose not to avail himself of the opportunity to be heard. A default judgment determines the parties\u2019 rights just as any conventional judgment or decree. See Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (1980).\nHowever, as the dissent notes, some courts in foreign jurisdictions hold that default judgments are not subject to collateral estoppel because default judgments do not arise from actual litigation. But see, e.g., Gottlieb v. Kest, 46 Cal. Rptr. 3d 7, 34 (Cal. Ct. App. 2006) (\u201cCalifornia, on the other hand, accords collateral estoppel effect to default judgments, at least where the judgment contains an express finding on the allegations.\u201d). The courts holding that collateral estoppel does not apply to default judgments also err, as the dissent does, in the definition of \u201cactually litigated.\u201d The citation of an Iowa case serves as an example of how the error arises. In Blea v. Sandoval, 761 P.2d 432, 435 (N.M. Ct. App. 1988), cited by the dissent, the New Mexico Supreme Court relied, among other cases, on Lynch v. Lynch, 94 N.W.2d 105 (Iowa 1959), for the proposition that a default judgment has no collateral estoppel effect. In Lynch, the Iowa Supreme Court stated, \u201cCollateral estoppel is usually not available in default cases.\u201d 94 N.W.2d at 108 (emphasis added). This appears to support the dissent\u2019s position; however, upon further analysis, it is clear that Lynch does not hold that all default judgments fail to satisfy the requirements of collateral estoppel. In making the statement about collateral estoppel not usually applying to default judgments, the Iowa Supreme Court cited to Matson v. Poncin, 132 N.W. 970 (Iowa 1911). Matson does not state that collateral estoppel does not apply to default judgments. Rather, there we find that \u201cit must appear that the particular matter was considered and passed on in the former suit, or the adjudication will not operate as a bar to subsequent action.\u201d Matson, 132 N.W. at 972. The court in Matson went on to state that \u201ca matter, not embraced in the pleadings, and which was not necessarily determined in entering judgment could not have been directly in issue.\u201d Id. Thus, the phrase \u201ccollateral estoppel is usually not available in default cases,\u201d really meant that collateral estoppel is not available unless the matter was raised in the pleadings, or otherwise, and directly decided. Default judgments may or may not satisfy the requirements of collateral estoppel. The question must be considered on a case-by-case basis.\nThe issue of collateral estoppel and default judgments was also discussed in Lane v. Farmers Union Insurance, 989 P.2d 309 (Mont. 1999) (also cited by the dissent). There, the court considered the question of whether a default judgment served as a final judgment on the merits. To decide this, the court concluded it had to determine whether the issue was actually litigated and stated a test:\nThis analysis requires two things: first, that the issue was effectively raised in the pleadings, or through development of the evidence, and argument at trial or on motion; and, second, that the losing party had a full and fair opportunity procedurally, substantively, and evidentially to contest the issue in a prior proceeding.\nLane, 989 P.2d at 317. Again, as in Lynch, supra, the question is whether the issue was properly raised and whether there was a full and fair opportunity to be heard.\nOther courts have held that the requirement of actual litigation was met in a default judgment:\nA judgment taken by default is conclusive by way of estoppel in respect to all such matters and facts as are well pleaded and properly raised, and material to the case made by declaration or other pleadings, and such issues cannot be relitigated in any subsequent action between the parties and their privies. []\nIn re Bursack, 65 F.3d 51, 54 (6th Cir. 1995) (quoting Lawhorn v. Wellford, 168 S.W.2d 790, 792 (Tenn. 1943)). Still other jurisdictions bear out this conclusion that \u201cactually litigated\u201d means notice and a full and fair opportunity to be heard rather than litigation where a matter is decided only after development and introduction of evidence by both sides. A discussion in Overseas Motors, Inc. v. Import Motors, Ltd., 375 F. Supp. 499 (D.C. Mich. 1974), is helpful:\nDefault Judgment \u2014 Collateral estoppel applies only to those issues which were \u2018actually\u2019 or \u2018fully litigated\u2019 in the prior action. However, this rule does not refer to the quality or quantity of argument or evidence addressed to an issue. It requires only two things: first, that the issue has been effectively raised in the prior action, either in the pleadings or through development of the evidence and argument at trial or on motion; and second, that the losing party has had \u2018a fair opportunity procedural!/, substantively, and evidentially\u2019 to contest the issue. The general rule therefore is that subject to these restrictions default judgments do constitute res judicata for purposes of both claim preclusion and issue preclusion (collateral estoppel).\nOverseas Motors, Inc., 375 Supp. at 516, quoted in In re Bush, 62 F.3d 1319, 1323 (11th Cir. 1995); In re Houston, 305 B.R. 111, 118 (Bankr. M.D. Fla. 2003); In re Foster, 280 B.R. 193, 205 (Bankr. S.D. Ohio 2002).\nIn the present case, the issue of the validity of the marriage was decided in the default judgment after personal notice and a full and fair opportunity to be heard. The determination of Davelynn\u2019s marital status was essential to the judgment in the paternity action. Davelynn asserted in the paternity action that she was not married at the time of D.P.\u2019s conception and birth. Jason did not offer any evidence to the contrary, although he had the opportunity to do so. The circuit court declared that Davelynn was not married to Jason at the time of D.P.\u2019s conception and birth. Thus, the issue of marital status was \u201cactually litigated.\u201d The decision of paternity was conclusive, and Jason is bound by that decision. Collateral estoppel applies in this case. To hold otherwise would undermine the finality of judgments. There is no bright-line rule. Each judgment, taken by default, or otherwise, must be examined to determine what was finally decided and whether it meets the requirements of collateral estoppel.\nIn connection with his argument that his marriage to Davelynn was valid, Jason asserts that the adoption should be void because no home study was conducted of Davelynn and Wendell\u2019s home. Arkansas Code Annotated section 9-9-212(b)(l)(A) (Supp. 2005) states: \u201cBefore placement of the child in the home of the petitioner, a home study shall be conducted by any child welfare agency licensed under the Child Welfare Agency Licensing Act, \u00a7 9-28-401 et seq., or any licensed certified social worker.\u201d Pursuant to Arkansas Code Annotated section 9-9-212(c), \u201c[t]he court may also waive the requirement for a home study when a stepparent is the petitioner.\u201d Jason asserts that because he and Davelynn never obtained a divorce, Davelynn\u2019s marriage to Wendell is void; therefore, Wendell is not D.P.\u2019s stepparent, and a home study could not be waived.\nThere is a longstanding presumption against deliberate bigamy, Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953), and there is a common law presumption of the validity of the second marriage, Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971). The burden of disproving the validity of a marriage is on the one attacking it. Bruno, supra. Here, the only argument advanced by Jason is that the second marriage is void because he and Davelynn were still validly married, an argument that he is collaterally estopped from asserting. Jason has failed to overcome the presumption of the validity of the marriage between Davelynn and Wendell. It follows that he has failed to prove that Wendell was not D.P.\u2019s stepparent at the time of the adoption and that a home study was required in this case.\nConsent to Adoption\nJason contends that the circuit court erred in granting the petition for adoption because there was insufficient evidence that he had failed significantly without justifiable cause to communicate with D.P. and to support D.P. Adoption statutes are strictly construed, and a person who wishes to adopt a child must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007). A circuit court\u2019s finding that consent is unnecessary because of a failure to support or communicate with the child will not be reversed unless clearly erroneous. Id.\nArkansas Code Annotated section 9-9-206 (a) (2) (Supp. 2005) provides in relevant part:\n(a) Unless consent is not required under \u00a7 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:\n(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter ....\nArkansas Code Annotated section 9-9-207(a)(2) (Supp. 2005) provides:\n(a) Consent to adoption is not required of:\n(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree[.]\nThe circuit court concluded that, while there was much testimony and conflict over whether Jason had attempted to communicate with D.P., there was no dispute that the last child support was paid in December 2004. Therefore, the circuit court found that consent was not necessary. The failure to pay child support, standing alone, justifies the finding that consent is unnecessary. At the July 5, 2006 hearing, Jason admitted that he had \u201cquit paying child support to [Davelynn].\u201d He claimed that he had child support \u201csitting over here in a fund.\u201d The record reveals that Jason\u2019s last payment of child support to the clearinghouse was recorded on December 6, 2004. There was no evidence that he had otherwise paid child support. Thus, it is clear that Jason failed to pay support in excess of one year. Failure to pay support without justifiable cause means a failure that is voluntary, willful, arbitrary, and without adequate excuse. See In re Adoption of K.F.H. & K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993) (citing Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980)). Jason voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year. Jason\u2019s reason for not paying support \u2014 that it was an attempt to get Davelynn back into court \u2014 is not justifiable cause for failing to support his child. The circuit court did not err in finding that consent to the adoption was unnecessary because Jason failed to pay child support in excess of one year.\nOpportunity to Cure\nJason contends that the circuit court erred in granting the adoption and terminating his parental rights under the provisions of Arkansas Code Annotated section 9-9-207 (Supp. 2005) because he was not given the opportunity to cure as provided by Arkansas Code Annotated section 9-9-220(c)(l) (Supp. 2005), which provides:\nIn any addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:\n(1) Abandonment.\n(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the noncustodial parent.\n(B) If the notification clause required by subdivision (c)(1)(A) of this section is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.\n(C)(i) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.\n(ii) Once the requirements under subdivision (c)(1) (C)(i) of this section are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.\n(iii) The court may terminate parental rights of the non-custodial parent upon a showing that:\n(a) Child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1) (C)(i) of this section; and\n(b) It would be in the best interest of the child to terminate the parental relationship.\nThe record reveals that Jason had the opportunity to \u201ccure\u201d his failure to pay child support, pursuant to section 9-9-220(c)(l)(C), but he chose not to do so. The petition in this case was filed on March 28, 2006. Under section 9-9-220(c)(l)(C), Jason had three months from that date, or until June 28, 2006, to pay a substantial amount of past due payments owed and to establish a relationship with his child. No payments were made. Although Jason contended, at the hearing on July 5, 2006, that he paid the funds into a separate account, he never deposited those funds into the registry of the court nor did he pay any of those funds to the mother. Even after receiving notice that an adoption petition was filed, he still refused to comply with the court order regarding child support. By his own actions, Jason did nothing to enforce any right he might have had to \u201ccure\u201d his failure to pay child support.\nIn sum, the circuit court found that Jason\u2019s consent was not necessary for the adoption and that it would be in D.P.\u2019s best interest to grant the petition for adoption. We recognize that the circuit court did not conclude, as we do, that Jason is collaterally estopped from challenging the validity of the marriage. It is axiomatic that this court can affirm a circuit court if the right result is reached even if it is for a different reason. See, e.g., Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). We affirm the circuit court\u2019s granting of the petition for adoption.\nCourt of appeals reversed; circuit court affirmed.\nBrown and Wills, JJ., dissent.\nThe record shows that Jason was personally served.\nIt appears that the confusion over the meaning of\u201cactuaIly litigated\u201d may arise from the distinction between claim preclusion under res judicata and issue preclusion, or collateral estoppel. Under claim preclusion or res judicata, the entire claim is precluded, including any and all issues that were or might have been raised; however, under issue preclusion, or collateral estoppel, only those issues that were directly and necessarily adjudicated (actually litigated) are precluded. See Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). From this distinction comes the requirement under collateral estoppel that the issue to be precluded must have been \u201cactually litigated.\u201d Thus, \u201cactually litigated\u201d has nothing to do with whether the judgment was obtained by default, summary adjudication, trial, or otherwise; rather, the question is whether the issue to be precluded was adjudicated in the judgment at issue.\nAs the dissent notes in citing In re Cantrell, 329 F.3d 1119 (9th Cir. 2003), California does not follow the courts that hold there is a blanket rule against applying collateral estoppel to default judgments. This dates back some time as the authority cited by the court in Cantrell indicates. \u201cThe fact that the judgment was secured by default does not warrant the application of a special rule. \u2018A default judgment is an estoppel as to all issues necessarily litigated therein and determined thereby exacdy like any other judgment.\u2019 \u201d In re Harmon, 250 F.3d 1240, 1246 (2001) (quoting Horton v. Horton, 116 P.2d 605, 608 (Cal. 1941)). The complete quote, which is found in Harvey v. Griffiths, 23 P.2d 532, 534 (Cal. Ct. App. 1933), is as follows:\nIt is immaterial that the judgment which is assailed was procured by default. The defendants in that action had an opportunity to appear and protect their interest. They deliberately waived the right to their day in court by failing to appear and answer the complaint. A default judgment is an estoppel as to all issues necessarily litigated therein and determined thereby exactly like any other judgment provided the court acquired jurisdiction of the parties and subject-matter involved in the suit.\nHarvey, 23 P.2d at 534 (citing 3 A.C. Freeman, A Treatise of the Law of Judgments \u00a7 1296, at 2690 (5th ed. 1925)).\nThis language appears to have originated in 1 Henry Campbell Black, A Treatise on the Law of Judgments \u00a7 87, at 126-27 (1891), where the above-quoted language is found. Black goes on to state that \u201cwhile a default judgment is conclusive of all that is properly alleged in the complaint, it is conclusive of nothing more, and as a general rule it binds the defendant only in the character in which he is sued.\u201d Id.", "type": "majority", "author": "Jim Hannah, Chief Justice." }, { "text": "Elana Cunningham Wills, Justice,\ndissenting. Because I do not agree that the default judgment entered in the paternity action has preclusive effect under the doctrine of collateral estoppel, I respectfully dissent.\nAs the majority points out, one required element of collateral estoppel is that the issue sought to be precluded must have been \u201cactually litigated.\u201d \u201cThe question of whether an issue has been previously litigated is interpreted very narrowly for purposes of collateral estoppel.\u201d In re Estate of Goston v. Ford Motor Co., 320 Ark. 699, 705, 898 S.W.2d 471, 473 (1995) (citing Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983)). This court recently held that \u201cactually litigated\u201d means \u201cactually litigated.\u201d Bradley Ventures v. Farm Bureau, 371 Ark. 229, 237, 264 S.W.3d 485, 492 (2007) (guilty plea in a criminal case is not equivalent to a criminal conviction that has been \u201cactually litigated\u201d). Similarly, in State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 16, 59 S.W.3d 438, 445 (2001), we held that where the trial judge stated in a divorce decree that \u201cthe parties hereby have one (1) child,\u201d but neither party put paternity at issue and no adversary presentations of evidence on this point were made, the court\u2019s finding of paternity \u201cwas not the result of litigation.\u201d By stating that the matter must actually be litigated, we \u201c emphasize [d] the necessity for trying the issue sought to be estopped.\u201d Willis, 347 Ark. at 16, 59 S.W.3d at 445. This court has never before held that a default judgment satisfies the \u201cactually litigated\u201d prong of the collateral estoppel doctrine. We have held default judgments conclusive for purposes of the related doctrine of res judicata, see, e.g., Bruns Foods of Morrilton, Inc. v. Hawkins, 328 Ark. 416, 944 S.W.2d 509 (1997); however, the doctrine of res judicata does not require that the matter have been \u201cactually litigated.\u201d\nThere is some disagreement among the courts of our sister states on the question of the preclusive effect of default judgments for purposes of collateral estoppel. The \u201cmajority view\u201d has been described as a finding that, with default judgments, nothing is \u201cactually litigated.\u201d Gottlieb v. Kest, 46 Cal. Rptr. 3d 7 (Cal. Ct. App. 2006); see also Lane v. Farmers Union Ins., 989 P.2d 309 (Mont. 1999) (acknowledging the \u201cgeneral rule\u201d that a default judgement carries no collateral estoppel effect). The courts adhering to this view often cite the Restatement (Second) of Judgments to this effect. The case of Blea v. Sandoval, 761 P.2d 432, 435-36 (N.M. Ct. App. 1988), is illustrative:\nThere is ample authority for the proposition that a default judgement has no collateral estoppel effect. See Restatement (Second) of Judgments \u00a7 27e, at 257 (1982); Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir. 1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983); In re McMillan, 579 F.2d 289 (3d Cir. 1978); Lynch v. Lynch, 250 Iowa 407, 94 N.W.2d 105 (1959). The Restatement formulation and the foregoing cases recognize that default judgments do have res judicata effect, but distinguish collateral estoppel from res judicata. The basis of the distinction is the doctrine that res judicata bars consideration, in a subsequent suit, of all matters that could properly have been raised in the prior case, while collateral estoppel bars consideration only of issues actually litigated and determined by a valid and final judgment .... The Restatement and the foregoing federal cases recognize that in a default judgment, the issues are not actually litigated. The Restatement also states that the policy of preventing endless litigation does not apply as strongly in the collateral estoppel context as it does when parties are repeatedly attempting to relitigate the same cause of action. Hence, while it may be proper to accord res judicata effect to a default judgment, it is not appropriate to give such a judgment collateral estoppel effect.\nExamples of cases adhering to the general rule are Lee ex rel. Lee v. United States, 124 F.3d 1291 (Fed. Cir. 1997); In re McMillan, 579 F.2d 289 (3d Cir. 1978); State ex rel. Department of Economic Security v. Powers, 908 P.2d 49 (Ariz. Ct. App. 1995); Burns v. A Cash Construction Lien Bond, 8 P.3d 795 (Mont. 2000); Lane, supra; McNair v. McNair, 856 A.2d 5 (N.H. 2004); Slowinski v. Valley National Bank, 624 A.2d 85 (N.J. Super. Ct. App. Div. 1993); Chambers v. City of New York, 764 N.Y.S.2d 708 (N.Y. App. Div. 2003); Martin v. Poole, 336 A.2d 363 (Pa. Super. Ct. 1975); McGill v. Southwark Realty Co., 828 A.2d 430 (Pa. Cmmw. Ct. 2003); State v. Bacote, 503 S.E.2d 161 (S.C. 1998); Horton v. Morrison, 448 S.E.2d 629 (Va. 1994); Christian v. Sizemore, 407 S.E.2d 715 (W. Va. 1991); see also 50 C.J.S. fudgment \u00a7 797 (\u201cAlthough a party against whom a default judgment is entered certainly had an opportunity to litigate, most courts have concluded that an opportunity to litigate should not be given the same effect as actual litigation, unless the application of the estoppel to some subsequent proceeding was forseeable when the default was entered.\u201d); Note, Collateral Estoppel in Default fudgments: The Case for Abolition, 70 Colum. L. Rev. 522 (1970).\nSome courts have carved out limited exceptions to the general rule, \u201cwhere the party against whom collateral estoppel is sought to be invoked has appeared in the prior action or proceeding and has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request.\u201d In re Abady, 800 N.Y.S.2d 651 (N.Y. App. Div. 2005); accord Treglia v. MacDonald, 717 N.E.2d 249 (Mass. 1999) (\u201cWe can, for example, envision circumstances in which a litigant may so utilize our court system in pretrial procedures, but nonetheless be defaulted for some reason, that the principle and rationale behind collateral estoppel would apply.\u201d) (citing In re Gober, 100 F.2d 1195 (5th Cir. 1996) (default judgments issued as discovery sanctions); In re Bush, 62 F.3d 1319 (11th Cir. 1995) (fraud)); see also In re Docteroff, 133 F.3d 210 (3d Cir. 1997); In re Bursack, 65 F.3d 51 (6th Cir. 1995); Int\u2019l 800 Telecom Corp. v. Kramer, 591 N.Y.S.2d 313 (N.Y. Super. Ct. 1992). We have no such circumstances here.\nHere, the trial court correctly ruled in its July 24, 2006 order that the default judgment \u201cwas not, and could not, resolve questions of marital status.\u201d The majority concludes that the issue was \u201cactually litigated\u201d because: (1) the petition for declaration of paternity included the bald and disingenuous assertion that the parties \u201cwere not married to each other ... at the time of the conception and birth\u201d; and (2) Jason had a full and fair opportunity to be heard on the issue of the validity of the marriage after he was served with the paternity suit, and chose not to avail himself of the opportunity. This recitation of facts does little more than restate the ordinary factors creating a default judgment, albeit one in which the defendant received actual notice. The doctrine of collateral estoppel is normally inapplicable to such judgments under the general rule. Instead, the majority\u2019s holding is akin to the position adopted by California, as described by the Ninth Circuit Court of Appeals in In re Cantrell, 329 F.3d 1119, 1124 (9th Cir. 2002):\nThe mere fact that \u201cjudgment was secured by default does not warrant the application of a special rale.\u201d California law does, however, place two limitations on this general principle. The first is that collateral estoppel applies only if the defendant \u201chas been personally served with summons or has actual knowledge of the existence of this litigation.\u201d Collateral estoppel, therefore, only applies to a default judgment to the extent that the defendant has actual notice of the proceedings and a \u201cfull and fair opportunity to litigate.\u201d\n(Internal citations omitted.) But see Walter W. Heiser, California\u2019s Confusing Collateral Estoppel (Issue Preclusion) Doctrine, 35 San Diego L. Rev. 509, 556 (1998) (suggesting that if the California Supreme Court really adheres to the four-factor test of the second Restatement of Judgments, it \u201cshould disapprove of those decisions that have extended collateral estoppel to default judgments\u201d). I do not agree that this court should adopt this minority position, especially without more analysis as to its desirability or particular applicability to the facts of this case.\nThe majority opinion repeatedly relies on the fact that Jason had a \u201cfull and fair opportunity\u201d to be heard on the existence or validity of his marriage. I disagree that compliance with this requirement satisfies the \u201cactually litigated\u201d prong of collateral estoppel under Arkansas law. The requirement of a \u201cfull and fair opportunity\u201d to litigate \u201capparently developed as a due process safeguard around the time the mutuality requirement was dropped in Parklane Hoisery Co. v. Shore, 439 U.S. 322 (1979).\u201d Falk v. Falk, 88 B.R. 957, 962 n.5 (Bankr. D. Minn. 1988). The requirement of mutuality of estoppel has been eliminated in most jurisdictions, including Arkansas. Id.; see also Willis, supra; Mary H. Moore, Arkansas\u2019 Position Regarding Defensive Collateral Estoppel and the Mutuality Doctrine, 47 Ark. L. Rev. 701 (1994). Strangers to the first decree may assert collateral estoppel as long as the person against whom it is asserted had a \u201cfull and fair opportunity to litigate.\u201d This is necessary to satisfy due process concerns. See Parklane Hoisery, supra. However, this requirement does not obviate the \u201cactually litigated\u201d prong of collateral estoppel in Arkansas. See Willis, supra.\nAs noted by the court in Falk, supra, 88 B.R. at 962, \u201c[t]he demise of the mutuality doctrine and the development of the full and fair opportunity to litigate concept have lead [sic] to some confusion with respect to the elements necessary to successfully assert collateral estoppel.\u201d The court explained as follows:\nSome courts use the traditional elements based on the Restatement of Judgments: (1) The issue sought to be precluded must be the same as that involved in the prior litigation; (2) That issue must have been actually litigated; (3) It must have been determined by a valid and final judgment; and (4) The determination must have been essential to the judgment. Other courts, however, apply somewhat different elements: (1) The issue was identical to one in a prior adjudication; (2) There was a final judgment on the merits; (3) The estopped party was a party or in privity with a party to the prior adjudication; and (4) The estopped party was given a full and fair opportunity to be heard on the adjudicated issue.\nFalk, 88 B.R. at 962 (citations omitted).\nWe have not, until today, adopted the latter view. Instead, we have previously adhered to the traditional Restatement elements, including that the matter must have been \u201cactually litigated.\u201d See Bradley Ventures, supra. After the demise of mutuality, the full and fair opportunity to litigate represents the bare minimum that must be afforded in light of due process concerns. I would not depart from our historical \u201cactually litigated\u201d test in this regard. As noted in the Restatement (Second) of Judgments \u00a7 27 cmt. e (1982), when approaching difficult questions regarding the \u201cactually litigated\u201d requirement, \u201cpolicy considerations. . . weigh strongly in favor of nonpreclusion, and it is in the interest of predictability and simplicity for such a result to obtain uniformly,\u201d These interests are not fostered by a \u201ccase-by-case\u201d approach favored by the majority.\nThe majority also relies upon the presumption of the validity of a second marriage and states that Jason \u201cfailed to overcome the presumption of the validity of the marriage between Davelynn and Wendell.\u201d The majority concludes that the \u201conly argument advanced by Jason is that the second marriage is void because he and Davelynn were still validly married, an argument which he is collaterally estopped from asserting.\u201d As set out above, I disagree that the doctrine of collateral estoppel is applicable on these facts. In addition, the presumption of the legal validity of a second marriage is just that, a presumption, which may be overcome with positive proof. Watson v. Palmer, 219 Ark. 178, 240 S.W.2d 875 (1951) (The \u201cpresumption is a rebuttable one, and may be overcome with sufficient proof. . . and must give way to reality when facts opposing the presumption are presented.\u201d (quoting Gray v. Gray, 199 Ark 152, 133 S.W.2d 874 (1939)). We have held that the presumption of the validity of the second marriage can be overcome with proof that the parties to the first ceremonial marriage never obtained a divorce. See, e.g., Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971). The presumption is not as strong where there has not been a considerable lapse of time between the two marriages, Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953). Here, it appears from the record that Davelynn and Wendell were married approximately two years after Davelynn\u2019s separation from Jason, and the trial court dismissed Jason\u2019s divorce petition in its July 24, 2006 order, even though it held that it was \u201cclear that the parties did participate in a marriage ceremony.\u201d\nNo matter how lightly or irreverently Davelynn claims to have entered the union, the facts show that she procured, or participated in the procurement of: (1) a license; (2) a minister; (3) a \u201ccreme-colored\u201d dress; and thereafter marched down the aisle in front of family and friends and said \u201cI do.\u201d In my judgment, this is sufficient to meet the test for \u201csolemnization\u201d under Arkansas law and to overcome the presumed validity of the second marriage. The fact that the minister did not sign the license or return it is not fatal to the validity of the marriage, and the trial judge erred in so holding. See Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001). Because the potential adoptive parents in this instance could not have been validly married, I would reverse the trial court\u2019s grant of the adoption petition and remand for further proceedings. Bruno, 221 Ark. at 762, 256 S.W.2d at 343 (ceremonial marriage to a person who has previously been married and who never obtained a divorce is void). As the court of appeals noted, the trial judge\u2019s decision was based upon the erroneous conclusion that Davelynn and Jason were never validly married.\nThe doctrine of collateral estoppel should not be expanded, and the presumption of the validity of a second marriage given conclusive effect, in order to resolve a case in which the Arkansas law governing marriage is on one side, and the perceived equities are on the other. Accordingly, I respectfully dissent.\nBrown, J., joins this dissent.\nAs indicated above, there are some states, including California and Tennessee, that adhere to a different minority rule. The majority cites the decisions of these states. See, e.g., Gottlieb, supra; Lawhorn v. Wellford, 168 S.W.2d 790 (Tenn. 1943). The two Iowa cases cited by the majority are distinguishable, however. Lynch v. Lynch, 94 N.W.2d 105 (Iowa 1959), which stated that collateral estoppel is usually not available in default cases, turned upon the application of res judicata rather than collateral estoppel, and the court refused to apply the doctrine of collateral estoppel. Matson v. Poncin, 132 N.W. 970 (Iowa 1911), did not involve a default judgment and the issue was whether the court in the previous suit had made a finding on the particular issue sought to be estopped. These Iowa rulings do not clearly depart from the general rule that a default judgment carries no collateral estoppel effect.\nAlthough our court of appeals has applied the doctrine of collateral estoppel in one case involving a default judgment, Reyes v. Jackson, 43 Ark. App. 142, 861 S.W.2d 554 (1993), it did so without the depth of analysis that the weight of authority or matters addressed above command. The application of collateral estoppel to a judgment by default should be not decreed so lightly, either by the court of appeals or by the majority in this case.\nThe second factor that California requires is that there be an express finding on the point at issue.\nEven among the jurisdictions that apply the minority view, it does not appear that any jurisdiction has direcdy held that a default custody or paternity judgment, where the lack of a valid marriage is indicated, can preclude the parties from subsequendy litigating the validity of the marriage under the collateral estoppel doctrine.\nThe latter view is the law of Montana. See Lane, supra (discussed by the majority).\nAdditionally, Davelynn and Jason lived together as husband and wife for over eight years after their ceremonial marriage and birth of their son. In Allen v. Wallis, 279 Ark. 149, 152, 650 S.W.2d 225, 227 (1983), this court stated that \u201c[w]here there is cohabitation apparently matrimonial, a strong presumption of marriage arises which increases with the passage of time, during which the parties lived together as husband and wife, especially where the legitimacy of a child is concerned.\u201d", "type": "dissent", "author": "Elana Cunningham Wills, Justice," } ], "attorneys": [ "Mary M. Rawlins, for appellant.", "Bob Keeter, for appellees." ], "corrections": "", "head_matter": "Jason Joeseth POWELL v. Davelynn Felkel LANE and Wendell Ray Lane\n08-282\n289 S.W.3d 440\nSupreme Court of Arkansas\nOpinion delivered December 11, 2008\nMary M. Rawlins, for appellant.\nBob Keeter, for appellees." }, "file_name": "0178-01", "first_page_order": 208, "last_page_order": 230 }